The Pirate Bay – Innocent or Guilty?

Yesterday the prosecutor called for jailtime, while the prosecution presented its closing statements. Today the defense had its say and the trial officially ended.

The Pirate Bay trial started on February 16 with lots of press coverage, protesting pirates and people handing out free candy. As the days went by, plenty of information was presented by both the prosecution and defense.

So which elements are most relevant, and which side is ahead in the polls?

On day two of the trial the prosecutor announced that half of the charges against the four defendants had been dropped. The prosecutor couldn’t prove that the .torrent files that were submitted as evidence actually used The Pirate Bay’s tracker, and he had to let go of all charges that accused the Pirate Bay folks of ‘assisting copyright infringement’.

What remained is the claim that they were ‘assisting in making copyright content available’. Armed with several screenshots of web pages and torrents downloading films and music albums, the prosecution argued that this was indeed the case. The torrent files hosted on The Pirate Bay allow people to download and share copyrighted material – period – they argued.

The crucial part here of course is whether the defendants actually ‘assisted’ in making any files available, this will eventually be up to the judge to decide. The prosecution has shown that there are indeed torrent files hosted on The Pirate Bay, and that some of these indirectly link to copyrighted material. However, whether the defendants are assisting in making copyright content available remains doubtful.

The defense has argued that they are not ‘assisting’, and dragged a giant primate into court to prove it. On the third day of the trial Carl Lundström’s lawyer, Per E Samuelsson pointed out that the prosecution failed to prove that Lundström had been involved in any transfers of any copyrighted material. This became known as the now famous King Kong defense.

‘The admins of The Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong,’ Samuelsson told the court.

‘According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström has personally interacted with the user King Kong, who may very well be found in the jungles of Cambodia,’ the lawyer added.

During the days that followed both sides tried to strengthen their case, but not much that was actually related to the ‘assisting in making available’ charges that are central to the case. The prosecution brought in more screenshots and some actual torrent files as evidence, and tried to get a better grip on the Pirate Bay’s anarchic ‘management’ structure.

The defense on the other hand, argued that there are many ways to share torrent files online. By playing a video in court they showed that The Pirate Bay is just one of many torrent trackers, and a tiny part of the download chain. One of the witnesses, Kristoffer Schollin from Gothenburg University, told the court that the Pirate Bay is an ‘open database’ of .torrent files which he described as simply an advanced type of hyperlink.

In addition to detailing the charges, there was further debate on the damages claims from last week. While music and movie industry insiders claimed that piracy was responsible for a large part of the decline in sales of their respective industries, media professor Wallis told the court that the file-sharing is actually beneficial to the entertainment industry.

It is now up to the judge to review all the information presented by both parties and decide whether the defendants are guilty of ‘assisting in making copyright content available’.

If the decision was based purely on a big win via the media during the trial, there can be no question that The Pirate Bay won a decisive victory and proved to be even more popular than ever expected. However, as it stands, it’s difficult to find anyone – no matter where their preferences lie – who is willing to step out and say who they believe is going to prevail in the case overall.

What is pretty much certain is that this won’t end with the verdict that is due on April 17. No matter what the outcome it seems unthinkable that either side will accept a defeat. An appeal seems almost inevitable.